Love v. State

• Decision Date: 06 December 1932
• Citation: 107 Fla. 376,144 So. 843
• Parties: LOVE v. STATE.
• Court: Florida Supreme Court

144 So. 843

107 Fla. 376

LOVE v. STATE.

Florida Supreme Court, Division B.

December 6, 1932

Error to Circuit Court, Osceola County; Frank A. Smith, Judge.

P. L Love was convicted of statutory arson, and he brings error.

Reversed for a new trial.

COUNSEL Johnston & Rogers, of Kissimmee, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

DAVIS J.

P. L Love was indicted and convicted in the circuit court of Osceola county for the violation of section 1 of chapter 15603, Acts of 1931 (Ex. Sess.), relating to and defining the offense of statutory arson. The section under which the indictment was found reads as follows:

'Section 1. Arson.--First Degree. Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied, or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another, shall be guilty of Arson, in the First Degree, and upon conviction thereof, be punished by imprisonment in the State prison for not more than twenty years.'

Motion to quash the indictment was filed and overruled. The proposition advanced was that the section and chapter under which the defendant had been indicted was unconstitutional and void, in so far as it undertook to prohibit the defendant from burning his own property. ^[1]

But the statute is not susceptible to objection on the constitutional ground urged, because under it the mere burning, per se, of one's own property is not made a crime. It is the willful and malicious setting fire to, or burning, that constitutes the gravamen of the offense. A 'malicious' burning, that is, a burning or setting fire to property, would be such an act done with a condition of mind that shows a heart regardless of social duty and bent on mischief, evidencing a design to do an intentional wrongful act toward another, or toward the public, without any legal justification or excuse for the burning or setting fire to the property, even though it belonged to the perpetrator. An example of such an act of malicious burning would be to set fire to or burn one's own property to thereby accomplish an indirect injury to another, or to the public, without any real or pretended legal justification or excuse for the doing of that act. A 'wilful' setting fire to or burning would be such an act consciously and intentionally, as distinguished from accidentally or negligently done, where the negligence was not so gross that the intention could be implied from the gross disregard of duty constituting the negligence. Stetson University v. Hunt, 88 Fla. 510, 102 So. 637.

Construing our statute as meaning simply that a willful and malicious burning or setting fire to property is to constitute the statutory offense denounced, we find no constitutional objection to it as being either an arbitrary interference with a property right, or as too indefinite to constitute a reasonable standard of conduct which must be observed in order to avoid entanglement with the criminal law. The indictment was in the...